Citation Nr: 0629233
Decision Date: 09/15/06 Archive Date: 09/26/06
DOCKET NO. 04-17 686 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Sioux
Falls, South Dakota
THE ISSUE
Whether a May 1994 rating decision was clearly and
unmistakably erroneous in not assigning a separate
compensable evaluation for each ear for tinnitus.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
ATTORNEY FOR THE BOARD
Michael J. Skaltsounis, Counsel
INTRODUCTION
The veteran had active service from February 1966 to February
1969.
Initially, the Board of Veterans' Appeals (Board) notes that
while the record does not reveal that the veteran filed a
Department of Veterans Affairs (VA) Form 9 following the
issuance of the statement of the case in April 2004, it does
reflect a May 2004 VA Form 646 that may be construed as a
timely substantive appeal of the denial of the veteran's
claim of clear and unmistakable error (CUE). Consequently,
the Board finds that it currently has jurisdiction of this
matter.
FINDING OF FACT
An unappealed May 1994 rating decision, which assigned a
single 10 percent rating for the veteran's bilateral
tinnitus, is final and was reasonably supported by the
evidence that was of record and prevailing legal authority;
it was not undebatably erroneous.
CONCLUSION OF LAW
The unappealed rating decision of May 1994, which assigned a
single 10 percent rating for bilateral tinnitus, was not
clearly and unmistakably erroneous. 38 U.S.C.A. § 1155 (West
1991); 38 C.F.R. § 4.87a, Diagnostic Code 6260 (1993);
38 C.F.R. § 3.105(a) (2005).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Board would first note that the notice and duty to assist
provisions of the Veterans Claims Assistance Act of 2000,
38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002) (VCAA),
are not applicable to claims based on clear and unmistakable
error. Livesay v. Principi, 15 Vet. App. 165 (2001).
At the time of the May 1994 rating decision which assigned a
single 10 percent rating for the veteran's tinnitus,
applicable law and regulations provided for a single 10
percent rating for bilateral tinnitus. 38 U.S.C.A. § 1155
(West 1991); 38 C.F.R. § 4.87a, Diagnostic Code 6260 (1993).
Consequently, in May 1994, the regional office (RO) properly
assigned a single 10 percent rating based on the evidence of
record and prevailing legal authority. The veteran has
therefore failed to establish a valid claim of CUE. Luallen
v. Brown, 8 Vet. App. 92, 96 (1995); Sabonis v. Brown, 6 Vet.
App. 426, 429-30 (1994).
ORDER
The claim that there was clear and unmistakable error in the
final May 1994 rating decision which assigned a single 10
percent rating for bilateral tinnitus is denied.
____________________________________________
John E. Ormond, Jr.
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs